Rules on judicial races challenged in suit

The Associated PressJuly 13, 2014 

— Judicial candidate Robert Winter Jr. thought he was on solid ground when he sent out fliers before Kentucky's May primary identifying himself as a "lifelong Republican" and three of his opponents as Democrats.

But soon after the primary, the state's Judicial Conduct Commission sent Winter a letter advising him that three complaints had been filed against him, The Courier-Journal (http://cjky.it/1oTEQzQ) reported. The commission requested that he respond.

Instead, the Kenton County lawyer sued the commission in federal court. He's demanding that Kentucky's judicial ethics rules be struck down as unconstitutional and that the judicial enforcement agency be prevented from sanctioning him.

The commission says Winter's suit is premature because it hasn't filed a formal charge against him — and may never do so.

"Just because we ask someone about complaints doesn't say what we are going to do about them or what our position is," said Steve Wolnitzek, the Judicial Conduct Commission's chair.

Lawyers say the case shows how Kentucky regulators are still grappling with how to balance the interest in keeping judicial races nonpartisan with the newfound freedoms given judicial candidates by the courts.

Running for Kenton circuit judge against four opponents, Winter sent out 12 different mailers. In the six that targeted Republican voters, he identified himself as a "lifelong Republican" and three of his four opponents as registered Democrats. The fliers didn't identify a fifth candidate who also is a Republican.

The mailers also said Winter would "protect our conservative values" and that "judicial activism" would have "no place in my courtroom."

The strategy did not succeed; Winter came in last, which he attributes to lack of name recognition.

On June 2, the commission notified him that three anonymous complaints had been filed against him, for identifying his party and the party of his opponents, and for misleading voters by suggesting the election was a partisan race. The judicial discipline agency asked him to respond to the allegations.

Winter sued in U.S. District Court in Covington, charging that the commission was trying to enforce a "patently" unconstitutional rule against speech that the 6th Circuit Court of Appeals said was protected.

His lawyer, Christopher Wiest, said many voters want to know whether a judicial candidate is a Republican or Democrat, along with their other affiliations, because they are a shorthand way of discovering the candidate's "guiding philosophies and principles" that may influence their decisions on the bench.

Four ago, the 6th Circuit appeals court in Cincinnati said judicial candidates have a right to announce their party affiliation, the newspaper said.

"Elections are elections, and the same First Amendment applies to all of them," the appeals court said in one of a series of rulings around the country loosening restrictions on what candidates can say during judicial election contests.

In First Amendment cases, federal courts have said that candidates can say, for example, that they would be "tough on crime," that they would have joined in the dissent in Roe v. Wade, the 1973 decision legalizing abortion nationwide, or that they think the death penalty is cruel and unusual punishment.

"I am not convinced that there is much of anything we can keep anyone from saying," said Wolnitzek, the Judicial Conduct Commission's chair.

But Louisville judicial campaign consultant Larry O'Bryan said candidates are afraid to test the envelope for fear of being slapped by watchdog groups like Citizens for Better Judges and the Kentucky Judicial Campaign Conduct Committee if they do.

In this latest case, U.S. District Judge Amul Thapar recently gave both sides until Aug. 21 to file briefs.

Winter faces a possible private reprimand or public admonition if the commission charges him.

Information from: The Courier-Journal, http://www.courier-journal.com

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